# O'Malley v. Dowd Marketing, Inc.

> District Court, M.D. Pennsylvania · March 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10667480

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667480

## How later opinions describe it (automated extraction)

- reversing summary judgment in favor of the defendant where plaintiff had been discharged two days after his employer's receipt of his EEOC claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EUGENE O’MALLEY,
Plaintiff, .
V. : 3:17-CV-01419
: (JUDGE MARIANI)
DOWD MARKETING, INC.,
Defendant.
MEMORANDUM OPINION
|. INTRODUCTION AND PROCEDURAL HISTORY
On August 10, 2017, Plaintiff Eugene O’Malley brought suit against Sundance
Vacations, Inc. Plaintiff filed an Amended Complaint (Doc. 8), a Second Amended
Complaint (Doc. 16) and, with leave of Court (Doc. 25), a Third Amended Complaint.
Defendant Dowd Marketing, Inc. (“Dowd”) moved to dismiss Plaintiffs Third
Amended Complaint (Doc. 26). Plaintiff's Third Amended Complaint alleged ten counts:
Count One for “Interference with Plaintiffs Rights Under the Family and Medical Leave Act”;
Count Two for “Retaliation in Violation of the Family and Medical Leave Act”; Count Three
for “Interference in Violation of the Family and Medical Leave Act”; Count Four for
“Retaliation in Violation of the Family and Medical Leave Act”; Count Five for “Failure to
Accommodate in Violation of the Americans with Disabilities Act’; Count Six for “Failure to
Accommodate in Violation of the Pennsylvania Human Relations Act”; Count Seven for

“Unlawful Retaliation in Violation of the Americans with Disabilities Act”; Count Eight for
“Unlawful Retaliation in Violation of the Pennsylvania Human Relations Act”; Count Nine for
“Unlawful Discrimination in Violation of the Americans with Disabilities Act’; and Count Ten
for “Unlawful Discrimination in Violation of the Pennsylvania Human Relations Act.” (See
Doc. 25).
On November 15, 2018, Magistrate Judge Carlson issued a Report and
Recommendation (“R&R”) (Doc. 46) wherein he recommended that Counts One and Three
of Plaintiff's Third Amended Complaint be dismissed but that Dowd’s Motion be denied in all
other respects. This Court adopted the R&R by Order dated December 3, 2018 (Doc. 47)
and accordingly, Counts One and Three of Plaintiff's Third Amended Complaint were
dismissed.
On April 10, 2019, Defendant Dowd filed a Motion for Summary Judgment (Doc. 53).
The Motion has been fully briefed and is ripe for disposition.
For the following reasons, the Court will grant in part and deny in part the
Defendant's Motion.
Il. STATEMENT OF UNDISPUTED FACTS
Plaintiff Eugene O'Malley was hired in 2013 to work at Dowd Marketing as a
computer programmer (Def’s. Statement of Material Facts (‘DSOMF”), Doc. 54, at 1). The
Plaintiff was promoted to the position of Project Manager in 2015. (Id. at J 2).

1 Dowd Marketing, Inc. was substituted for Sundance Vacations, Inc. on Plaintiffs Amended Motion

Mr. O'Malley received a $10,000 salary increase in April 2015 in relation to his
promotion to Project Manager. The raise was made retroactive to the date that Mr.
O'Malley began serving as Project Manager. (ld. at J 5).
Defendant's Statement of Material Facts states:
At the suggestion of a representative of Dowd Marketing’s human relations
department, on October 21, 2015, Mr. O’Malley requested leave under the
Family and Medical Leave Act (“FMLA”) to be with his father who was sick.
Dowd Marketing’s Human Resources Manager, Kelly Valovich, forwarded to
Mr. O'Malley a copy of the FMLA request form to complete and told him that
“you are approved for FMLA unless told otherwise.” Mr. O'Malley never
returned the completed form because his father passed away a short time
after he received the blank form.
(Id. at J 6)(internal citations omitted). Plaintiff's response to this SOMF “admits in part and
disputes in part the statements contained therein.” (Plaintiff's “Counter-Statement of Facts”
("PCSOF”), Doc. 60 at 6). While Mr. O’Malley states that he “disputes the suggestion that
he took this leave ‘at the suggestion of Dowd or its agents”, he admits the other statements
of fact set forth in Defendant's SOMF { 6, specifically, that Dowd’s human resources
manager forwarded to him a copy of the FMLA request form to complete and told him that
he was approved for FMLA unless told otherwise. (PCSOF, at { 6).
Plaintiff O'Malley received a salary increase in the amount of $2,000 in December of
2015 in connection with his year end review. (DSOMF, at { 7).
Mr. O'Malley received a written performance review on December 11, 2015.
Therein, he was rated as having met or exceeded expectations in all categories listed on the

to Substitute Party (Doc. 40) which this Court granted on June 26, 2018. (Doc. 41).

form, including attendance. There were no deductions or deficiencies in his evaluation and
Mr. O’Malley did not challenge any of the entries on the form. (/d. at J 8). Although Plaintiff
states that “he disputes” the statements in the DSOMF { 8, his deposition testimony
presents admissions of the facts set forth in this SOMF. Mr. O’Malley, when deposed,
testified as follows:
Q: — So who reviewed your performance in December of 2015?
A: _ | believe Marvin did.
Q: — And Marvin assessed your performance as meeting requirements in all
areas, correct?
A: _ | believe so.
Q: You got no checkmarks for unsatisfactory performance, right?
A: Nope, not seeing none.

Q: And you received no entries in marginal, right?
A: No.
Q: — And you received a number of entries for exceptional performance,
right?
A: Yes.
Q: And anumber of entries for exceeds requirements.
A: — Uh-huh.
Q: And the remainder were meets requirements.

A: Yes.

Q: So were there any deficiencies?
A: — No,|! guess not that would be.
Q: — And did you note any inaccuracies or did you challenge anything on
this report?
A: No. Not that | believe.
(O'Malley Dep., at 39:6-40:5; 40:21-25).
Plaintiff O’Malley “admits that he requested that he be permitted to work from home
in early 2016.” (PCSOF, at J 9; see DSOMF, at J 9). In his response, Mr. O'Malley asserts
that he “suffers from chronic, severe back pain that began with an automobile accident in
2008.” (PCSOF, at J 9). He further asserts that he “requested flex time and the ability to
work from home due to his disability from the beginning of his employment” and that the
Defendant provided these “accommodations” from “approximately 2013 to 2016.” (/d.). Mr.
O'Malley admits that “Defendant adopted a policy in or about 2016 that forbid employees
from working from home except for a company ‘emergency’ or a ‘critical event.” (/d.).
Plaintiff O’Malley admits the facts set forth in DSOMF § 10 which states:
Mr. O’Malley had previously asked Anna Pugliese in Dowd Marketing's
Human Resources Department about working from home. Ms. Pugliese
advised Mr. O’Malley via email on June 29, 2015 that her understanding is
that “no one is allowed to work from home.” In his email to Ms. Pugliese, Mr.
O'Malley references having custody of his kids and wanting to be able to
“work extra... from home.”
(DSOMF, at J 10)(internal citations omitted).

In response to J 11 of DSOMF, Mr. O’Malley “admits that Defendant's policy
forbidding employees to work from home was applicable to all employees, regardless of
whether (as was the case with Mr. O’Malley) the request was made as an accommodation
for a disability.” (PCSOF, at § 11).
Mr. O’Malley’s performance review for 2016 states that he met expectations in all
categories, including attendance. Mr. O’Malley received a $3,500 raise effective December
12, 2016. (DSOMF, at § 12; PCSOF, at § 12).
Although Mr. O'Malley denies that he was never disciplined for missing time or for
coming in late or leaving work early (PCSOF at ¥ 13), Mr. O’Malley’s deposition testimony is
to the contrary. Plaintiff testified that in 2017 he was told by Marvin Metzger that he missed
“too many days” and that he needed to “be here.” (O’Malley Dep., at 89:1-10).
Mr. O'Malley testified, however:
Q: _ Despite that, you were never written up for missing time?
A: No.
(Id. at 90:9-11). Mr. O’Malley also testified that: “| was never told | was slated for termination.
| was told that | missed too many days and that | need to be here.” (/d. at 88-89:2).
In response to J 14 of DSOMF, O’Malley, while denying that he was upset on April
27, 2017 when he learned that he would remain in the office to which he had been assigned
and would not be moving to a larger office at the rear of the IT room, acknowledges that he

“complained because he had been moved to [a] smaller, unheated office that he described

as a ‘closet’.”” (PCSOF at {| 14).
With respect to J 15 of Dowd’s SOMF, Mr. O'Malley responds by denying the
statements contained therein, specifically that he gave notice to his supervisor, SuAnn Ritter,
that he decided to leave Dowd Marketing and was looking for another job. (/d. at 15). Here
again, however, Plaintiffs counsel’s denial is at variance with Plaintiff O’Malley’s deposition
testimony. Plaintiff O’Malley testified as follows with respect to what he told Ms. Ritter:
Q: Well, you gave her notice that you were looking for employment
elsewhere.
A: _ | was told her | was looking for a job elsewhere. | said it would be no
time soon. | said I'd give her plenty of notice and help her anytime she
wanted.
(O'Malley Dep., 91:24-92:4).
When Mr. O'Malley left Dowd Marketing, Inc. in May of 2017, he had available
vacation time. (DSOMF, at J 19; PCSOF, at {] 19).
Plaintiff O’Malley admits that he missed work on May 2, 2017 due to a “stomach
issue.” (PCSOF, at J 20). Otherwise, Plaintiff's response to Dowd’s SOMF §[ 20 neither
admits nor denies the specific statements therein. Specifically, O’Malley does not admit or
deny whether he left early on April 24, 2017 because he was “tired” or that he “took April 28,
2017 off because he was ‘still not feeling good.” (See DSOMF, at J 20; PCSOF, {| 20).
Plaintiff's refusal to admit or deny these paragraphs when obligated to do so under Fed. R.
Civ. P. 56 and Middle District of Pennsylvania Local Rule 7.6 is not proper and these

statements will be deemed admitted. See Rau v. Allstate, -- F. App’x -- 2019 WL 6358755,
at *2 (3d Cir. 2019).
On May 8, 2017, Mr. O’Malley sent an email to Mr. Dowd asking, without an
explanation, “do you mind if | work from home this afternoon?” Mr. Dowd in turn responded:
You and | discussed this issue previously. You are welcome to take the time
off you need but we do not want to have you working from home. Hopefully
you understand and respect my position on this issue.
(DSOMF, at 21).
While admitting these facts, Mr. O'Malley also adds that he responded by email to
Mr. Dowd stating:
John sorry | thought you said we continue as we have been doing, which has
been on and off from being able to work [from home]. | work from [home] as
recently as middle of April but | will not ask anymore as | now understand
your stance.
(PCSOF, at J 21).
Defendant's SOMF states that “Mr. O’Malley never requested FMLA leave in relation
to any medical condition affecting himself.” (DSOMF, at J 25). In response, Mr. O'Malley
states he “disputes the statements therein.” (PCSOF, at J 25). However Mr. O’Malley’s
deposition testimony cannot be reconciled with this denial and therefore paragraph 25 of
Dowd’s SOMF is admitted. Mr. O’Malley’s deposition testimony is as follows:
Q: Did you ever ask for FMLA paperwork in relation to your own
condition, any condition that affected you personally?
A: No.

Q: — How about your children, did you ever have a need to -

A: No.
Q: _ Did you ever have a need to ask for FMLA leave for your children?
A: No.
Q: — And how about your — you told us earlier about your aunts, and they
had issues. Did you ever request FMLA leave in connection with any other
family member?
A: Not my aunts, no.
Q: Any other family member?
A: Not that | can recall, no. It was my dad. And actually | think that’s the
first time I’ve heard of FMLA. | don’t remember who told me to ask for it.
(O'Malley Dep., at 227:1-20)
Plaintiff O’Malley, in his deposition acknowledged that he had a conversation with
Dowd’s CEO Marvin Metzger in early 2016 at which time he was told he was not permitted
to have a flex schedule or to work from home. (/d. at 78:14-20). O'Malley further testified:
Q: And after that point was there any occasion where you worked a flex
schedule performing work from home?
A: No. At that point in time is when | started asking the Dowds about it.
(Id. at 79:23-80:2).
O'Malley testified to his discussions with John Dowd:
Q: — Tell me about the discussion or discussions you had with John Dowd.
A: — When | asked him about working from home he told me he didn’t think
it was the best interest of this company at this time.

| asked him that | was able to do it in the past. He told me that if you were
able to do it in the past, that was the past. Now we're not able to do it.
| told him that's one of the reasons | was hired under presumptions that | was
able to do this. | mean | have a disability, my back hurts, | get really bad
shooting pains. | mean, while it might not happen every day, it happens a few
times a year where | have a hard time walking, and | have really, really bad
pains. And that’s one of the reasons | went to Dowd Marketing because they
still offered that.
Q: —I'msorry.
A: — He told me he understood that, but he didn’t want it anymore from
there on out. And this was towards the end of before | was let go. So last few
months.
(Id. at 80:21-81:17).
Mr. O'Malley testified that was the only time he discussed that issue with John Dowd.
(Id. at 81:24-82:5).
Mr. O’Malley testified that John Dowd offered him time off in lieu of working from
home which would include his vacation time and going home without pay. (/d. at 84:14-17).
Plaintiff further testified that he spoke with John Dowd sometime before May 1, 2017
and that Dowd told him that he could take a day off, use a vacation day or half a vacation
day, and he would not be required to use his days in a row. (O’Malley Dep., at 159:24-
160:3; 164:5-9).
On May 2, 2017, Mr. O'Malley sent an email to John Dowd and Jackie Quigley
advising them that “I will not be in today, my stomach is bothering me. If needed, call cell
phone.” (/d. at 181:13-24).
10

On May 9, 2017 at 8:44 a.m., Mr. O'Malley sent an email to John Dowd and Jackie
Quigley in which he stated “I will not be able to make it in today.” (/d. at 182:9-15).
Plaintiff acknowledged that he sent an email to John Dowd after May 9 in which he
wrote “do you mind if ! work from home this afternoon.” He acknowledged the emails were
sent after he was planning to leave employment with Dowd. (/d. at 183:2-13). In response,
O'Malley John Dowd stated by email:
We previously discussed this. You are welcome to take time off you need,
but we do not want [to] have you work from home. Hope you understand and
respect my position on this issue.
at 183:17-21).
When asked what was the “final straw” that led him to decide he had to leave
employment with Dowd, Mr. O’Malley testified:
It was because | couldn't get the time off from work that | needed to when |
needed to use flex time or | needed to go work from home.
(Id. at 142:17-20). When asked whether he had ever asked for time off that he was refused

or denied, Mr. O’Malley testified:
A: Yes. Back when my father was sick. After that, that stint with SuAnn,
no, | was told | had to take my vacation times. That's why | burnt up eight
days of vacation in four months.
Q: Okay. So you were always allowed to take time off when you weren't,
you weren't well for whatever reason, you were allowed to take time off?
A: Yes.
(O'Malley Dep., at 142:24-143:8).

11

Mr. O'Malley also testified:
Q: — Well, when did you ask for time off and it was denied you?
A: _ It was not denied me, but | was told | cannot work from home. And,
like | said, you take eight days at four months, you times that out by a year,
that’s 24 days.
Ten days plus five days you can use and you get fired. Am | doing the math
wrong? That's 13 more days than | should be taking off a year before getting
fired.
So but that’s what it came down to. | told them | burnt through my days. |
didn’t have the time because you took away my flex time. You took away my
ability to work from home. That’s what the ultimate decision was.
The office | was upset about, of course anybody would be upset about, but
that was not the reason.
And | didn’t separate from the company. They brought me into the room with
Tommy and Tina Dowd and fired me on the spot, and told me I'm no longer
here. So my separation was nothing. They're the ones that separated from
me.
(Id. at 143:17-144:14).
II]. STANDARD OF REVIEW
Through summary adjudication, the court may dispose of those claims that do not
present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality,

... [only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).

12

The party moving for summary judgment bears the burden of showing the absence
of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once such a showing has been made, the non-moving party must offer specific
facts contradicting those averred by the movant to establish a genuine issue of material fact.
Lujan v. Nat! Wildlife Fed’n, 497 U.S. 871, 888 (1990). Therefore, the non-moving party
may not oppose summary judgment simply on the basis of the pleadings, or on conclusory
statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a
fact cannot be or is genuinely disputed must support the assertion by citing to particular
parts of materials in the record . . . or showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating
whether summary judgment should be granted, “[t]he court need consider only the cited
materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
“Inferences should be drawn in the light most favorable to the non-moving party, and where
the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be
taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.
1992), cert. denied 507 U.S. 912 (1993).
However, “facts must be viewed in the light most favorable to the nonmoving party
only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380
(2007). If a party has carried its burden under the summary judgment rule,

13

its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts. Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial. The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact. When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.
Id. (internal quotations, citations, and alterations omitted).
IV. ANALYSIS
The Defendant has separately addressed each of the remaining eight counts of
Plaintiff's Third Amended Complaint. Those counts are Counts Two, Four, Five, Six, Seven,
Eight, Nine and Ten.
In Count Two of his Third Amended Complaint, Plaintiff alleges that “Sundance
willfully retaliated against Mr. O’Malley for asserting his right to leave under the FMLA by
taking his FMLA protected leave into account in a negative manner in Mr. O’Malley’s
performance evaluation.” (Doc. 25, at J] 65).
“To succeed on an FMLA retaliation claim, a plaintiff must show that ‘(1) he invoked
his right to FMLA-qualifying leave, (2) he suffered an adverse employment decision, and (3)
the adverse action was causally related to his invocation of rights.” Ross v. Gilhuly, 755

2 Count Two is entitled “Retaliation in Violation of the Family and Medical Leave Act (Leave to Care
for Parent)”.
14

F.3d 185, 193 (3d Cir. 2014)(quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d
294, 302 (3d Cir. 2012)) (internal brackets omitted).
In its brief in support of summary judgment, Dowd argues that “Mr. O'Malley fails to
make out a prima facie case of FMLA retaliation or raise a genuine dispute for trial because
he did not suffer any adverse employment action.” (Doc. 55, at 9). In support of this
assertion, Dowd argues that “Mr. O’Malley was rated as having met or exceeded all
categories in his December 2015 review.” (/d.). Further, while Dowd acknowledges that the
performance review noted that Mr. O’Malley missed “extra days” in 2015 due to family
illness and deaths, he was still rated as having met expectations with regard to attendance.
(Id. at 9-10). Dowd argues that Plaintiff received a $2,000 raise as a consequence of his
review which was “consistent with his other year-end review and was in addition to the
$10,000 raise that he received in April 2015 in connection with his promotion to project
manager.” (Id. at 10).
Defendant cites to several cases in support of its argument that Plaintiff suffered no
adverse employment action. Thus, in Clark v. Philadelphia Housing Authority, the plaintiff
alleged that she had been punished and ultimately fired for taking off time from work even
though she was rightfully entitled to take the time pursuant to the FMLA. The Court of
Appeals, in affirming the District Court's dismissal of Clark’s retaliation claim, stated:
Clark does allege that she received an adverse performance review after she
sought, but was denied, FMLA leave in April of 2014. That performance
review, which simply noted that she “can improve on her attendance record to
enhance her career potential even further,” does not constitute an adverse
15

employment action sufficient to support her retaliation claim. The Supreme
Court has defined an adverse employment action as a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment, or
a decision causing a significant change in benefits.” Burlington Indus. Inc. v.
Ellerth, 524 U.S. 742, 749, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). In the
context of this case, Clark must allege facts from which it could be inferred
that the unfavorable performance review adversely affected the terms or
conditions of her employment.
701 F.App’x. 113, 117 (3d Cir. 2017).
Here, Dowd argues that it is undisputed that Mr. O’Malley was rated as having met

or exceeded all categories in his December 2015 review and that, accordingly, the review
does not constitute an adverse employment action sufficient to support his retaliation claim.
Dowd also argues that Plaintiff O’Malley received a $2,000 raise as a consequence of the
review and cites to Tucker v. Merck & Co., Inc., 131 F.App’x. 852, 857 (3d Cir. 2005) for the
proposition that, as the Court noted in Tucker, “even a negative evaluation that leads to a
lower than expected merit wage increase or bonus probably does not constitute an adverse
employment action.” (See Doc. 55, at 10)(emphasis added). See also, Rabinovitz v. Pena,
89 F.3d 482, 488-489 (7th Cir. 1996); E.E.0.C. v. Wyeth Pharm., 2004 WL 503417, *2 □□□
(E.D. Pa. 2004). As noted herein, Plaintiff did not receive a negative evaluation.
Plaintiff O'Malley, in response, cites no case law contrary to that cited by Defendant
Dowd. Instead, O'Malley argues, citing to the Magistrate Judge’s R&R in this case, that
“{g]enerally, for an action to be considered materially adverse, the action must have
“dissuaded a reasonable worker” from using his FMLA rights.” (Doc. 61 at 3). From this,

16

Plaintiff argues that “[a] reasonable jury could determine that a reduction in compensation of
$1,500 would dissuade a reasonable worker from using FMLA leave. “ (/d.).
Plaintiff mischaracterizes the sequence of events when he states that he sustained a
reduction in compensation of $1,500. Rather, the undisputed evidence of record shows that
he received an increase of $2,000 in December of 2015, an amount less than what he
received in 2016, but he overlooks his receipt of a $10,000 salary increase in April of 2015
in relation to his promotion to Project Manager.
Dowd, in its Reply brief, reiterates that Plaintiff received a 2015 performance review
that rated him as having met or exceeded requirements in all categories and was
accompanied by a raise which as a matter of law, does not constitute an adverse
employment action. (Doc. 64, at 1-2). Dowd cites the cases which it had previously cited in
its brief in support of its motion for summary and notes that “Mr. O’Malley does not and
cannot cite any authority which holds otherwise.” (/d. at 3). Thus, Dowd argues that “Mr.
O'Malley has not satisfied his burden of proving any ‘materially adverse’ consequence
resulting from his 2015 review and therefore fails to make out a prima facie case of
retaliation.” (/d.). The Court agrees. Neither the performance evaluation which, as noted
herein, rated Plaintiff O’Malley as having met or exceeded all performance expectations, nor
the $2,000 raise that he received based on that performance evaluation, present adverse
employment actions against him which would support a claim for retaliation in Count Two.

17

Accordingly, Defendant’s motion for summary judgment on Plaintiffs Count Two will be
granted.
Dowd also seeks judgment as a matter of law on Plaintiff's retaliation claim in Count
Four, asserting that O’Malley did not receive a negative performance evaluation or suffer

any adverse employment action.
In Count Four, Plaintiff alleges that the Defendant “willfully retaliated against Mr.
O'Malley for asserting his right to leave under the FMLA by taking his FMLA protected leave
into account in a negative manner in Mr. O’Malley’s performance evaluation.” (Doc. 25, at J
74),
Here, Dowd’s argument is straight-forward. Dowd argues that Mr. O’Malley admitted
that he never requested FMLA leave in relation to any health condition affecting himself and
that, having failed to request FMLA leave, he cannot satisfy the first element of an FMLA
retaliation claim.
Indeed, Mr. O’Malley testified that he never requested FMLA paperwork in relation to
his own condition or with respect to his children or other relatives. Plaintiff's deposition
testimony is as follows:
Q: Did you ever ask for FMLA paperwork in relation to your own
condition, any condition that affected you personally?
A: No.

3 Count Four is entitled “Retaliation in Violation of the Family and Medical Leave Act (Leave for
Employee’s Own Serious Health Condition).”
18

Q: — How about your children, did you ever have a need to -

A: No.
Q: Did you ever have a need to ask for FMLA leave for your children?
A: No.
Q: — And how about your — you told us earlier about your aunts, and they
had issues. Did you ever request FMLA leave in connection with any other
family member?
A: — Not my aunts, no.
Q: Any other family member?
A: Not that | can recall, no. It was my dad. And actually | think that’s the
first time I've ever heard of FMLA. | don’t remember who told me to ask for it.4
(O'Malley Dep., at 227:1-20).
In Chamberlain v. Wyoming County, the District Court, in declining to reconsider its
grant of summary judgment in favor of the employer on a retaliation claim where the
employee did not request FMLA leave, addressed the issue now before this Court, i.e.,
whether the Plaintiff-employee’s failure to invoke his right to FMLA leave precludes a
retaliation claim. In so doing, it stated:
As to plaintiff's FMLA retaliation claim regarding her May 2014 hospitalization,
as the court found in its prior memorandum, plaintiff failed to present sufficient
evidence that she invoked her right to FMLA-qualifying leave for this
hospitalization. “To succeed on an FMLA retaliation claim, a plaintiff must
show that ‘(1) she invoked her right to FMLA-qualifying leave, (2) she suffered

4 There is no dispute that Mr. O'Malley did not return the completed FMLA request form after he
requested leave based on his father's illness because his father passed away a short time after Mr.
O'Malley received the blank form. (See DSOMF, at 6).
19

an adverse employment decision, and (3) the adverse action was causally
related to her invocation of rights.” Ross v. Gilhuly, 755 F.3d 185, 193 (3d
Cir. 2014) (citing Lichtenstein, 691 F.3d at 302). Before taking leave, an
employee must give their employer adequate notice about their need to take
FMLA leave and “state a qualifying reason for the needed leave.” 29 C.F.R. §
825.301(b); see also Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 149,
153 (3d Cir. 2015). Although an employee does not need to specifically and
expressly request leave under the FMLA to qualify for protection, 29 C.F.R. §
825.301(b), the employee does have to provide some notice to make the
employer aware that the employee needs FMLA-qualifying leave and how
long that leave will be. /d. § 825.302(c). In determining whether the
employee’s notice to her employer was adequate, consideration must be
given to “how the information conveyed to the employer is reasonably
interpreted.” Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d
Cir. 2007).
2019 WL 108847, at *3 (M.D. Pa. 2019). See also, Parrotta v. PECO Energy Company,
363 F.Supp.3d 577, 604 (E.D. Pa. 2019) (wherein plaintiff “admitted under oath he did not
request FMLA leave.”).
Here, the pivotal assertion in Count Four of Plaintiffs Third Amended Complaint is
that the Defendant retaliated against Plaintiff for asserting his right to leave under the FMLA
by taking his FMLA protected leave into account in a negative manner in Mr. O’Malley’s
performance evaluation. This memorandum has previously addressed Plaintiffs assertion
that his leave was taken into account in a negative manner in his 2015 performance
evaluation, and rejected such assertion. Because the evaluation showed that Mr. O’Malley
met or exceeded all of his job requirements and responsibilities and specifically that the
Plaintiff's attendance met his employer's expectations, the Plaintiff did not suffer an adverse
employment action either in connection with the performance evaluation or the raise he

20

received. Merely because Plaintiff's performance evaluation noted that “Gene missed extra
days due to family illness and deaths” (Employee Performance Update, Doc. 60-2), this did
not cause the Plaintiff to receive a negative evaluation with respect to attendance. Instead,
as noted, the evaluation form notes that Plaintiff met the attendance requirements for 2015.
More importantly, however, Plaintiff O'Malley has admitted that he did not “assert” his right
to leave under the FMLA as alleged in paragraph 74 of the Complaint. Because Count Four
specifically founds Mr. O’Malley’s retaliation claim on the theory that he was retaliated
against because he asserted his right to leave under the FMLA for his “own serious health
condition” (see Doc. 25, at 11), O’Malley’s admission that at no time did he actually assert
this right under the FMLA requires the entry of summary judgment against him as to Count
Four of his Complaint.
In Count Five of his Third Amended Complaint, Mr. O’Malley alleges that he was an
individual with a disability within the meaning of that term as set forth in the Americans With
Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA’); that at all
times Defendant was aware of his disabilities and the accommodations that he required;
that the employer perceived Plaintiff to be a person with a disability although Plaintiff was
able to perform the essential functions of his job with or without reasonable
accommodations; and that Plaintiff O’Malley requested that Dowd provide reasonable
accommodations to him “to allow him to continue performing his job, such as time off of
work and permission to work from home when his disabilities prevented him going into the

21

office.” (Doc. 25, at {J 77-81). Mr. O'Malley thus alleges that Defendant failed to provide
reasonable accommodations to him as required by law and that Dowd failed to engage in
good faith in the interactive process required by law. (/d. at 82-83).
In Count Six of the Third Amended Complaint, Plaintiff repeats the allegation that
Dowd failed to provide reasonable accommodations to him and failed to engage in the
interactive process in good faith as required by law in violation of the PHRA. (/d. at 86-87).
Dowd moves for summary judgment with respect to Count Five and Count Six for
two reasons.
First, Dowd asserts that Plaintiff's claims in Counts Five and Six are untimely in that
Mr. O'Malley filed his charge of discrimination with the EEOC and the PHRC on or after
November 7, 2017. (Doc. 55, at 13). Dowd has attached Mr. O’Malley’s charge of
discrimination in support of its motion (Doc. 55-1) which bears a stamp showing receipt by
the EEOC on November 7, 2017.
Dowd correctly asserts that “[uJnder the ADA, a plaintiff has 300 days from the
alleged unlawful employment practice to file a charge of employment discrimination with the
U.S. Equal Employment Opportunity Commission.” (Doc. 55, at 13) (citing 42 U.S.C. §
12117(a); 42 U.S.C. § 2000e-5(e)(1)). Thus, the Supreme Court in National Railroad
Passenger Corporation v. Morgan, 536 U.S. 101, 110 (2002) flatly stated “[a] party,

22

therefore, must file a charge within either 180 or 300 days of the date of the act or lose the
ability to recover for it.”
Dowd thus argues that since Plaintiff O’Malley filed his charge with the EEOC on or
after November 7, 2017, “he can only challenge employment decisions that allegedly
occurred after January 11, 2017 — 300 days before the charge was filed.” (Doc. 55, at 13-
14). In support of this argument, Dowd states that “Mr. O'Malley testified that he was [sic]
received notice on June 29, 2015 and again on March 8, 2016 that, consistent with

company policy, he would not be permitted to work from home.” (Doc. 55, at 14)(citing
DSOMF, at Jf 9, 10).
Plaintiff O’Malley “admits that he requested that he be permitted to work from home
in early 2016.” (PCSOF, at J 9). Plaintiff further admits Dowd’s SOMF §[ 10 which states:
Mr. O’Malley had previously asked Anna Pugliese in Dowd Marketing's
Human Resources Department about working from home. Ms. Pugliese
advised Mr. O’Malley via email on June 29, 2015 that her understanding is
that “no one is allowed to work from home.” In his email to Ms. Pugliese, Mr.
O'Malley references having custody of his kids and wanted to be able to
“work extra. . . from home.”
(DSOMF, at J 10; PCSOF, at { 10).
In response to Defendant’s argument with respect to timeliness, O’Malley essentially
argues for the application of a continuing violation theory, arguing that his requests for
accommodation were made in 2015 and 2016 as set forth in Defendant's SOMF [fj 9 and

5 In Mandel v. M&Q Packaging Corp., 706 F.3d. 157, 165 (3d Cir. 2013), the Third Circuit made
clear that the 300-day extended statute of limitations applies only to the EEOC charge and not to the PHRA
23

10, recounted above, but that he continued his accommodation request and made a request
to Dowd “within the last two months of me being let go.” (Doc. 61, at 7).
Plaintiff's reasonable accommodation claim based upon a continuing violations
theory has been rejected by the Third Circuit. In Mercer v. SEPTA, the Court of Appeals
affirmed the lower court’s reasoning that a plaintiff's requests for accommodation were not
continuing violations “because the denial of a reasonable accommodation is a discrete
event.” 608 F.App’x. 60, 63 (3d Cir. 2015). See also, Zdziech v. DaimlerChrysler Corp., 114
App’x 469, 472 (3d Cir. 2004) (rejecting Plaintiffs “theory” that Defendant's “continued
refusal to return him to work should be considered a continuing act of ongoing
discrimination”, thus creating a continuing violation, and explaining that allowing Plaintiff “to
establish a continuing violation by repeatedly asking for reinstatement is contrary to the
policy rationale of the statute of limitations.”)(internal quotation marks omitted).
The argument raised by the plaintiff in Mercer and rejected by both the District Court
and the Court of Appeals bears strong resemblance to that advanced by Mr. O’Malley as
the following passage from Mercer shows:
The District Court correctly dismissed Mercer's reasonable accommodation
Claim as time-barred. Under the ADA, a plaintiff must file a claim with the
EEOC within 300 days of the action complained of in order not to be time-
barred on that claim. 42 U.S.C.A. § 2000e-5(e)(1). (This requirement is
provided for in Title VII of the Civil Rights Act of 1964.) Mercer filed his EEOC
charge on July 8, 2011. As such, the District Court considered only those
events after September 11, 2010, 300 days prior, in evaluating his reasonable

filing which must be accomplished within 180 days as provided for in the Pennsylvania Human Relations
Act. See 43 Pa. Stat. § 959(h).
24

accommodation claim. Mercer argues that while his formal requests for
accommodation, through his doctor's notes, took place before September 11,
he continued to request accommodation throughout the summer of 2010, and
SEPTA continued to deny this request by making him work on overheated
buses through October 2010. He argues that these incidents should restart
the clock, under a continuing violations theory. The District Court correctly
rejected this argument for two reasons: (1) Mercer's requests for
accommodation, assuming they were denied, were not continuing violations
because the denial of a reasonable accommodation is a discrete event, and
(2) Mercer had not demonstrated an independently recoverable denial of a
requested accommodation after September 11, 2010.
A reasonable accommodation request is a one-time occurrence rather than a
continuing practice, and therefore, does not fit under the continuing violations
theory. Aubrey v. City of Bethlehem, 466 Fed.Appx. 88 (3d Cir. 2012). In
Aubrey, we held that continuing violations theory does not apply to denial of
reasonable accommodation under ADA because the nature of such a claim
does not involve repeated conduct. /d. at 92....
Id.
For these reasons, Plaintiff's claim of a violation of the Americans With Disabilities
Act based upon a failure to accommodate him (Count Five) and his identical claim for a
failure to accommodate in Count Six based upon the Pennsylvania Human Relations Act
are time barred and will be dismissed.
Although the Court has found Plaintiff's claims to be time barred in Counts Five and
Six of his Complaint, Dowd further argues that even if Plaintiff's claims were determined to
be timely, it is nonetheless entitled to summary judgment on these claims because the
Plaintiff's request that he be allowed to work from home does not present a request for a
“reasonable accommodation” and that O’Malley therefore did not suffer an adverse
employment action. (Doc. 55, at 15-16).
25

Plaintiffs ADA and PHRA discrimination and retaliation claims are evaluated using
the well-established McDonnell Douglas burden shifting framework. See e.g. Hatch v.
Franklin Cty., 755 F.App’x 194, 198 (3d Cir. 2018)(applying the McDonnell Douglas
framework to ADA and PHRA discrimination claims).
“In order to establish a prima facie case of disability discrimination, Plaintiff must
show: ‘(1) [he] is disabled within the meaning of the ADA; (2) [he] is otherwise qualified to
perform the essential functions of the job; and (3) [he] has suffered an adverse employment
decision because of discrimination.” Keyhani v. Trustees of Univ. of Pa., 2019 WL
2568279, at “4 (E.D. Pa. 2019) (quoting Gagliardo v. Connaught Labs., Inc., 311 F.3d 565,
568 (3d Cir. 2002)). Once the plaintiff has established a prima facie case, the defendant
“then bears the burden to produce a legitimate, non-discriminatory reason for the adverse
employment action” and “[i]f the defendant makes such a showing, the burden then shifts
back to the plaintiff to demonstrate that the defendant’s purported reason was really pretext
for discrimination.” Hatch, 755 F.App’x at 198.
In Keyhani, the Court began its analysis by observing that “[t]he majority of Plaintiff's
claims rise and fall on one issue: whether she was entitled to the accommodation of her
choice (working from home two days per week). The law is clear that Plaintiff was entitled
to reasonable accommodations, but not the accommodation of her choice.” 2019 WL
2568279, at *3.

§ McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
26

The plaintiff in Keyhani worked for the University of Pennsylvania as a Project
Manager in Penn’s Design and Construction Department of Facilities and Real Estate
Services. /d. at*1. On December 10, 2015, Plaintiff tripped on a sidewalk at work and fell
to the ground. She was referred to Penn Medicine and subsequently cleared for work with
sedentary duties the next day. She was later re-evaluated by Penn Medicine and cleared
for work without limitations. /d. Later, however, Plaintiff reported to a Penn Medicine
physician that she suffered from concussion type symptoms “such as forgetfulness, difficulty
concentrating, dizziness, and headaches.” /d. The physician to whom she had reported her
symptoms indicated that Plaintiff would “benefit from working from home with rest breaks
throughout the day.” /d.
Thereafter, another Penn Medicine physician recommended that Plaintiff be able to
work from home two to three days per week. Plaintiff provided a note from the physician
incorporating this recommendation to her supervisor. Although the Plaintiff initially began
working from home two days per week, she was later not permitted to work from home
although she was authorized to limit her work week to three days per week. /d. at *2.
Defendant accommodated Plaintiff “by permitting her to wear sunglasses and use noise-
cancelling headphones during the three days per week that she was at work.” /d. The
plaintiff received FMLA leave on June 16, 2016, retroactive to February 2, 2016. She was
paid by Defendant for three days of work per week while Workers’ Compensation paid for
the other two days off. Plaintiff used her allotted sick leave, paid time off, and FMLA unpaid

27

leave to cover the two days off per week. /d. On October 7, 2016, the Plaintiff provided her
Defendant-employer with a note from her treating physician which cleared her for work for
three days per week in a work space where she could control light and sound, take rest
breaks, and could limit sustained computer use. Also recommended by Plaintiff's physician
was allowing her to work from home the other two days of the work week. On November 7,
2016, the Defendant declined to extend Plaintiffs reduced work schedule accommodation
asserting that “it had created significant operational challenges and that continuing it would
generate undue hardship.” /d. Subsequently, Plaintiff's physician provided a note stating
that Plaintiff could work five days per week for six hours per day. Plaintiff returned to a full-
time schedule but was permitted to continue wearing sunglasses and noise cancelling
headphones. /d. She thereafter filed suit, alleging, inter alia, a failure to accommodate.
The District Court granted Defendant's motion for summary judgment on Plaintiffs
claims of a failure to accommodate as well as a claim that she had suffered an adverse
employment action.
The District Court's analysis includes a recitation of the applicable law regarding a
request that an employee be accommodated by being permitted to work from home:
Plaintiffs main argument is that Defendant retaliated against her by refusing
to provide her preferred accommodation — working from home two days per
week. However, as discussed above, this refusal cannot be an adverse
employment action since Plaintiff was provided with legally adequate
alternative accommodations which kept her working and eventually allowed
her to return to full-time employment. See Garner v. Sch. Dist. of
Philadelphia, 63 F.Supp.3d 483, 500 (E.D. Pa. 2014) (providing that a plaintiff

28

cannot maintain an ADA retaliation claim premised on a failure to
accommodate as it is merely an ADA discrimination claim repackaged).
Plaintiff additionally contends that she was retaliated against for filing her
disability, FMLA, and Workers’ Compensation claims in that: she was required
to exhaust her paid time off and sick leave before being allowed to use unpaid
FMLA leave; she was removed from several projects; she was yelled at once
by Buchman because her calendar was inaccessible to her supervisors;
Dausch was frustrated with her need for accommodations; other unidentified
Project Managers thought she was faking her disability; and Defendant
altered her work hours.

.. . [RJequiring Plaintiff to exhaust her paid time off and sick leave before
allowing her to use unpaid FMLA leave is contemplated under the regulations
and is considered a reasonable accommodation under the law. 29 C.F.R. pt.
32, App. A (providing that employers “may be required to grant liberal time off
or leave without pay when paid sick leave is exhausted”); 29 C.F.R. pt. 1630,
App. (“accommodations could include permitting the use of accrued paid
leave or providing additional unpaid leave for necessary treatment’):
Congleton v. Weil McLain, No. 01-cv-2237, 2003 WL 22100877, at *7 (E.D.
Pa. Aug. 19, 2003) (holding that a “reasonable accommodation for a disability
can include ‘permitting the use of accrued paid leave or providing additional
unpaid leave for necessary treatment” (quoting Hudson v. MCI Telecomms.
Corp., 87 F.3d 1167, 1168 (10th Cir. 1996))); Hankins, 84 F.3d at 801-02
(concluding that allowing the use of paid sick leave and personal days, a
voluntary time-off program, and vacation time were reasonable
accommodations). Therefore, the Court concludes that requiring Plaintiff to
use paid leave before unpaid leave is not an adverse employment action.
Keyhani, 2019 WL 2568279, at * 6.
Here, Plaintiff O’Malley was provided with reasonable accommodations as his
deposition testimony establishes. Mr. O’Malley testified:
Q: As you sit here today, do you recall asking for a particular day off that
was refused?

29

A: — Not to my recollection, no, | can’t say, | can’t. Not the specifics to
actually say to put it on record.
(O'Malley Dep., at 30:19-23). Plaintiff also testified that he was allowed to take time off
when he was not well for whatever reason:
Q: Okay. So you were always allowed to take time off when you weren't,
you weren't well for whatever reason, you were allowed to take time off.
A: Yes.
(Id. at 143:5-8).
And again, when he was asked whether he requested time off and was denied,
Plaintiff responded:
A: |twas not denied me, but | was told | cannot work from home. And, like |
said, you take eight days at four months, you times that out by a year, that's
24 days.
Ten days plus 5 days you can use and you get fired. Am | doing the math
wrong? That’s 13 more days than | should be taking off a year before getting
fired.
So but that’s what it came down to. | told them | burnt through my days. |
didn’t have the time because you took away my flex time. You took away my
ability to work from home. That's what the ultimate decision was.
The office | was upset about, of course anybody would be upset about, but
that was not the reason.
(Id. at 143:17-144:9). The record is also clear that when Mr. O’Malley on May 8, 2017
asked by email to Mr. Dowd if he “minded” if he worked from home, Mr. Dowd responded:
“You are welcome to take the time off you need but we do not want [to] have you working
from home...” (O'Malley Dep., at 183:18-20).
30

Thus, Plaintiff has failed to establish a prima facie case of disability discrimination.
According every favorable inference to Plaintiff and assuming that he is disabled within the
meaning of the ADA by virtue of a major life impairment, specifically his back related pain
and inability to walk or work at various times, as Mr. O’Malley himself described it (“I mean |
have the disability, my back hurts, | get really bad shooting pains. | mean, while it might not
happen every day, it happens a few times a year where | have a hard time walking, and |
have really, really bad pains. And that’s one of the reasons | went to Dowd Marketing
because they still offered that.” (O’Malley Dep., at 80:21-81:17)) and further assuming that
Plaintiff is otherwise qualified to perform the essential functions of his job, he has not
suffered an adverse employment decision. Plaintiff has failed to establish a prima facie
case of discrimination based on the Defendant's refusal to allow him to work from home on
a flex schedule because the evidence shows that Defendant made a good faith effort to
reasonably accommodate him.
This determination is supported by Whelan v. Teledyne Metal Working Products, 226
F.App’x 141 (3d Cir. 2007). There, the plaintiff had a degenerative eye disease that
occluded his central vision. Initially, Defendant Teledyne granted his request for a transfer
to an outside sales job in another division of Teledyne. Two years later, Plaintiff advised
Teledyne that he could not longer work in the outside sales job because of his worsening
vision. Teledyne then provided Whelan with a computer and special software to allow him
to work as a marketing coordinator out of his home in Pittsburgh. /d. at 143. Because of its

31

financial conditions, Teledyne subsequently consolidated operations in its Grant, Alabama
facility. Teledyne determined that Whelan would have to move to Grant and it could no
longer permit him to continue working from home in Pittsburgh. /d. at 144. Plaintiff was
unwilling to move to Alabama and insisted that he be allowed to work from his home in
Pittsburgh. Teledyne informed Whelan that it would terminate him if he did not transfer, and
when he did not respond, Teledyne terminated him. /d.
Whelan brought claims against Teledyne alleging that he was terminated because of
his disability and that Defendant failed to provide a reasonable accommodation to him and
failed to engage in the ADA’s’ “interactive process” in good faith. The matter proceeded to
trial and the jury found Whelan qualified but found that Teledyne was not liable for
discriminatory discharge termination or failure to reasonably accommodate. Whelan, 226
F.App’x at 145. On appeal, Plaintiff sought judgment as a matter of law. The District Court
denied the motion and the Court of Appeals affirmed. With respect to the plaintiffs claim
that Teledyne did not provide him with a reasonable accommodation before firing him, the
Court stated:
When an employee “insists on a single accommodation that is unreasonable
as a matter of law, then the employee will be at fault for the breakdown in the
interactive process.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 316 n. 7
(3d Cir. 1999) (discussing Gaul v. Lucent Techs., Inc., 134 F.3d 576 (3d Cir.
1998)). The record supports a finding that working from home was
unreasonable. Teledyne had consolidated marketing operations in Grant in
order to enhance supervision in the department and realize administrative
efficiencies. By the end of 1998, Whelan was the only non-outside
salesperson working outside of Grant. Whelan's insistence on working from

32

home would deprive Teledyne of the efficiency gains and better quality work
product it wanted from consolidation.
Id. at 146.
Here, Plaintiff O’Malley has insisted on a single accommodation — that he be allowed
to work from home when he deems it necessary because of pain in his back or difficulty
walking as a result of his back condition. In response, the undisputed record evidence
demonstrates that O’Malley was never disciplined for missing time; that he was always
allowed to take time off when he was not well for any reason; that there was no occasion
when he asked for time off and it was denied him and instead his complaint was that the

company “took away my ability to work from home.” (O’Malley Dep., at 142:18-20; 142:24-
143:8; 143:17-144:14). Moreover, Defendant Dowd provided O’Malley with a reasonable
accommodation via time off.
Because Plaintiff O’Malley has failed to establish a prima facie case, the affirmative
defense of undue burden, and the need to assert it, was not triggered. See Khoury v.
Secretary United States Army, 677 F. App’x. 735, 737 (3d Cir. 2017) (“Because we agree
with the District Court that the Army provided a reasonable accommodation . . . we find that
Khoury failed to establish a prima facie case that would trigger the need for the affirmative
defense of undue burden.”). See also, Whelan, 226 F.App’x at 147 (“Failure to participate in
the interactive process is not a ground for liability unless the employee has proven a failure
to accommodate, namely, that a reasonable accommodation existed and the employer
unreasonably failed to provide it.”).
33

Thus, even if Mr. O’Malley’s claims that he was not reasonably accommodated were
not time-barred, he has failed to state a prima facie case of discrimination based on his
insistence of working from home as the only acceptable accommodation.
Moreover, it is worth noting that Dowd met the Plaintiff's request for an ergonomic
chair in response to a note from Dowd’s physician. Plaintiff has placed of record a hand
written note from Advanced Pain Management Specialists, P.C. dated April 3, 2017, which
States with respect to Mr. O'Malley:
To whom it may concern,
The above-named employee is a patient being treated for a back condition.
He requires an ergonomic chair and the ability to stand and walk for a couple
of minutes every hour.
(Doc. 60-13; see also, Dowd Marketing 30(b)(6) Witness Dep., Doc. 60-9, at 71:8-25). The
signature of the specific physician is illegible and not otherwise identified in the record.
There is no dispute that Dowd acquired an ergonomic chair for O’Malley. Plaintiff
O'Malley, in responding to Dowd’s statement of material facts states:
By way of further response, to help ameliorate the effects of Defendant's
refusal to allow him to work from home, Mr. O'Malley requested a new chair
to assist with his disability. The request for an ergonomic chair was made in
March of 2017. Mr. O'Malley gave Defendant a medical note regarding his
disability and the need for an ergonomic chair on or around April 3, 2017. Mr.
O'Malley received the ergonomic chair from Defendant. This chair was
different from the chairs that Mr. O’Malley is able to use at home to work
during a severe bout of back pain.
(PCSOF, at {| 24)(internal citations omitted). In stating that the ergonomic chair offered by
Dowd was different than the chairs Mr. O’Malley is “able to use at home to work during a
34

severe bout of back pain’, Plaintiff cites to his Declaration. (/d.). However, Mr. O’Malley’s
Declaration is not accurately quoted by Plaintiff's counsel. The Declaration, in paragraph
four states:
During episodes of severe pain | am able to work at home by using a “zero-
gravity” chair, or by using a reclining chair. The chairs | use at home are
different from the chair provided to me by Dowd Marketing, and provide better
relief from my pain.
(Doc. 60-21 at J 4)(emphasis added).
Plaintiff O’Malley’s admission that Dowd, in response to his request, provided him
with an ergonomic chair in accordance with his request and the medical note he submitted,
shows an additional accommodation made to Plaintiff O’Malley at his request. The fact that
O'Malley asserts that the chairs that uses at his home provide “better relief’ from his pain
does not diminish the reasonableness of Dowd’s accommodation through its providing of an
ergonomic chair along with a promise that he is able to take time off due to his back pain as
needed. Further, Plaintiff has not come forward with additional facts showing that he
specifically made a request for a different kind of chair to be used at work or that he
informed any representative of Dowd of any further need for accommodation through a
different type of chair. “An employer is not liable if the employee fails to supply it
information necessary to devise an appropriate accommodation . . . .” Whelan, 226 F.App’x
at 146. Further, the case law in this Circuit makes clear that “[a]n employer is not obligated
to provide an employee the accommodation he requests or prefers, the employer need only
provide some reasonable accommodation.” See Yovtcheva v. City of Phila. Water Dep't,
35

918 Fed. App’x 116, 122 (3d Cir. 2013)(quoting Gile v. United Airlines, Inc. 95 F.3d 492, 499
(7th Cir. 1996)).
For the afore-discussed reasons, summary judgment will be entered in favor of
Dowd and against Mr. O’Malley on Counts Five and Six of his Third Amended Complaint.
Dowd Marketing next argues that it is entitled to summary judgment on Plaintiff
O'Malley’s ADA and PHRC retaliation claims in Counts Seven and Eight.
Count Seven of Mr. O’Malley’s Third Amended Complaint alleges that he “engaged
in protected activity, including requesting accommodations for his disabilities and
questioning Sundance’s decision to withdraw established accommodations” and that
Defendant retaliated against him “for asserting his rights under the [ADA] by, inter alia,
terminating his employment.” (Doc. 25, at J] 90, 91).
Similarly, in Count Eight, O’Malley alleges a violation of the PHRA on the same
basis, /.e. that he engaged in protected activity by requesting accommodations for his
disabilities and questioning his employer's decision to withdraw established
accommodations and that Dowd retaliated against him for asserting these rights by
terminating his employment. (/d. at 94, 95).
Dowd argues that O'Malley did not suffer an adverse employment action because
“Mr. O'Malley, not Dowd Marketing, initiated his separation.” (Doc. 55 at 16). Dowd argues
that “Mr. O’Malley gave notice to his supervisor that he was looking for a new job and that
he would be leaving Dowd Marketing.” /d. Dowd further argues that on May 1, 2017, Mr.

36

O'Malley sent an email to the President of Dowd Marketing “advising that he was ‘looking
for employment elsewhere” and that Plaintiff sent an email to a “key vendor” stating that he
was “leaving” Dowd Marketing “over the next couple of months due to personally (sic)
reasons.” /d. at 16-17. Defendant additionally asserts that O’Malley gave notice to his
colleagues that he was leaving and that he began to transition his work duties. /d. at 17.
Accordingly, Dowd, citing cases for the proposition that a resignation is not an adverse
employment action, seeks the entry of summary judgment in its favor on Counts Seven and
Eight. It further notes that Mr. O’Malley has not claimed to have been constructively
discharged and that, in any event, he could not satisfy the burden of demonstrating
constructive discharge since he “cannot point to any arguably intolerable conditions that
might have caused a reasonable employee to believe he or she had no choice but to
resign.” Id. at 17 n.5.
Dowd offers a second argument in support of its motion for summary judgment on
Plaintiffs Counts Seven and Eight. It argues that Mr. O’Malley “has failed to adduce any
evidence suggesting a causal connection between any request for a flex-time schedule and
the decision to accept his resignation.” (Doc. 55, at 18). Down asserts that Plaintiff was
advised in March of 2016 that he would not be permitted to work from home, a fact that this
Court has found to be admitted. (See id.; DSOMF, at 9). Thus, Dowd argues that the “14-
month lapse between this notice and the acceptance of his resignation in May 2017

37

conclusively dispels any suggestion of retaliation and requires the conclusion that there is

no genuine issue for trial on the retaliation claim.” (Doc. 55 at 18).
Dowd argues as a third basis for its request for summary judgment on Counts Seven
and Eight that Plaintiff has not pointed to “any arguably protected conduct between the date
he tendered his resignation and the date his resignation was accepted.” (Id. at 19). Dowd
notes that Mr. O’Malley requested time off on April 28, 2017 because he was “not feeling
good”, on May 2, 2017 because his “stomach [was] bothering [him]”, and on May 9, 2017
based on O’Malley’s representation that he “will not be able to make it in today.” (/d.).
Dowd thus argues that Mr. O’Malley “did not request an accommodation or allude to any
medical condition that might arguably constitute a disability at any time after he gave notice
that he was leaving. Accordingly, he did not engage in protected conduct necessary to
make out a prima facie claim of retaliation.” (/d.).
Finally, Dowd states that it had a legitimate, non-discriminatory reason for accepting
Mr. O’Malley’s resignation, specifically that Mr. O’Malley refused to attend a meeting
concerning a significant project, the Concord project, on May 10, 2017, which Dowd argues
was the basis for “the decision to accept [O’Malley’s] resignation.” (/d. at 19-20).
Plaintiff has responded to Defendant's arguments by stating that his termination “was
not voluntary.” (Doc. 61, at 12). He argues that he did not set a resignation date and
argues that he “hoped that by telling Defendant that he was forced to leave, Defendant
would pay attention to the seriousness of his accommodation requests.” (/d.). Further, Mr.

38

O'Malley argues that he had prior permission not to attend the meeting concerning the
Concord project from John Dowd. (/d.; PCSOF, at J 22).
Mr. O'Malley distinguishes Dowd’s citation to Foster v. New Castle Area School
District, 98 F.App’x 85, 89 (3d Cir. 2004), by arguing that in contrast to the plaintiff in Foster
who submitted a resignation letter stating that her resignation was “effective immediately”,
Mr. O’Malley merely told Defendant that he had decided to leave because Defendant
refused to accommodate his disability and gave no effective date for such departure, further
noting that the Defendant did not request one. (Doc. 61, at 13).
A review of the record evidence first shows that whether Plaintiff O'Malley resigned
or was terminated from his employment presents material facts in sharp dispute. Mr.
O'Malley, at his deposition, testified:
And | didn’t separate from the company. They brought me into the room with
Tommy and Tina Do[wd] and fired me on the spot, and told me I’m no longer
here. So my separation was nothing. They're the ones that separated from me.
(O'Malley Dep., at 144:10-14). Later in his deposition, Mr. O’Malley testified that he had a
meeting with John Dowd on the 8t or 9 of May 2017 where he told Mr. Dowd:

... And | said your wife fired me because of the meeting | didn’t come to, and
said | was unreliable, and then you told me | didn’t have to go to those
meetings.
And he told me the decision was made and that’s final. He didn’t give me no
other further explanation than that.
(Id. at 205:7-13). Mr. O’Malley further testified that he asked Mr. Dowd why he was fired,
testifying:
39

| asked him why | was fired, | didn’t understand. | said and she mentioned the
meeting you said | didn’t have to go to. And he said, regardless, the decision
was made. He didn’t bother giving me any further explanation after that.
(Id. at 206:3-7).
The record, however, also shows that by email dated May 1, 2017, Mr. O’Malley
informed John Dowd as follows:
| wanted to see if you have time to talk today. | am sure SuAnn let you know
that | am looking for employment elsewhere as | felt like | have been wronged
again. | would just like to simple [sic] talk about this with you and also about
handbook as when | was hired; one of the main reason | did come to
Sundance was | was promised flex time and ability to work from home only
when needed (once in a while), which | have done multiply [sic] times in the
past here at Sundance. | would like to be able to leave in good terms when |
do give notice. Please let me know if you have time to talk today.
(Doc. 60-15, at 3).
Mr. O'Malley sent a similar email to Evan Green on May 1, 2017 where he wrote:
Evan | was wondering if you have a few minutes to talk. | am leaving
Sundance over the next couple of months due to personally [sic] reasons |
have with management. John asked if | would be willing to work for Concord
but he told the same thing to Shawn when he left as well. Just seeing if the
business is being truthful with me or not as they want me to teach someone
over the next couple of months before | leave.
(Doc. 54-10).
Mr. O'Malley sent another email dated May 1, 2017 to Niki Lordanov and Yannis
Yankov in which he stated:
Guys tomorrow Mark will be running scrum. We are making a transition as |
have decided to leave Sundance. | am not sure how long | will be here at
Sundance going forward.

40

But | will say that | have enjoyed working with you both. At all times you have
been professional, good attitudes no matter what was thrown at you. | have
the upmost respect for you both and hope you have a great careers and |
know you will be valuable to anyone you work for or with. Probably as
Sundance is years away from moving marketing and sales to a CRM.
(Doc. 54-12).
Thus, the record demonstrates material disputes of fact as to whether Dowd
terminated Mr. O’Malley for missing the Concord meeting on May 10, 2017, or whether his
email to John Dowd presents an independent and final decision on his part to leave his
employment with Dowd Marketing. To the extent, therefore, that Dowd seeks summary
judgment on the basis that Mr. O’Malley was not terminated but instead resigned his
employment, summary judgment will be denied. Whether Mr. O’Malley suffered an adverse
employment action by virtue of a termination by Dowd presents a factual dispute for trial.
However, Plaintiff has not pleaded a claim of constructive discharge in his Third
Amended Complaint. He seeks to escape this lapse by inserting a footnote in his brief in
Opposition, stating: “Even if Mr. O’Malley had walked out instead of notifying Defendant that
he planned to leave, it would be best understood as a constructive termination rather than a
voluntary resignation. See Smith v. Henderson, 376 F. 3d 529 (6th Cir. 2004).” (Doc. 61, at
12.11). This Court will not analyze claims made for the first time in a brief. “It is well
established that a plaintiff may not attempt to amend his complaint through his brief.”
Marshall v. Penn Twp., 2009 WL 3241873, at *8 n.9 (W.D. Pa. 2009) (citing Commw. of Pa.

ex. rel. Zimmerman v. Pepsico, Inc., 836 F. 2d 173, 181 (3d Cir. 1988)); Marshall v. Penn

44

Twp., 458 F.App’x 178, 181 (3d Cir. 2012) (“the District Court properly found that [claims not
included in the Complaint] could not be asserted for the first time in a brief submitted in
connection with the parties’ cross-motions for summary judgment.”). See also, Janowski v.
City of North Wildwood, 259 F.Supp.3d 113, 120 (D.N.J. 2017) (‘{I]t is axiomatic that the
complaint may not be amended by the briefs in opposition to the motion to dismiss.”).
Although Mr. O'Malley may not now assert that he was constructively discharged,
assuming that he was terminated by Dowd, there remains the need to address whether the
adverse employment action of termination was the result of retaliation against him based on
his protected activity of seeking accommodations for a back-related disability under the ADA.
Plaintiff has submitted a document entitled “Employee Health Statement” wherein he
acknowledged, in question 6, that he had been medically diagnosed and treated for his
“pack”, a document which he completed at the time of his hire which is dated June 22, 2013.
(Doc. 60-10). He likewise submitted on April 3, 2017, the previously quoted note from
Advanced Pain Management Specialists, P.C. (Doc. 60-13) which notes that he was being
treated for a back condition. Plaintiff has also submitted a “New Patient Evaluation” medical
report from Wyoming Valley Pain Clinic & Rehabilitation Center wherein it is noted that Mr.
O'Malley “sustained an injury of his neck and back in a motor vehicle accident on January 5,
2008.” (Doc. 60-14). This Evaluation details the nature of Mr. O’Malley’s injury as well as
the existence of “degenerative changes along the cervical and upper thoracic spine with a
small right paracentral disc herniation and possible extrusion at T1-T2.” (/d. at 1). The

42

Evaluation likewise notes “posterior disc protrusion noted at T2-T3,” and an MRI of the
lumbar spine taken on January 10, 2008, which showed “degenerative changes at the left
L4-5 disc protrusion annular tear which causes moderate left neural foraminal narrowing.”
The Evaluation notes the impression of the examining physician, Dr. Jacob as
including “cervical sprain and strain,” “cervical radiculopathy,” “aggravation of preexisting
cervical disc disease,” “thoracic disc injury with herniation T1-T2, T2-T3, and T4-T5,”
“lumboscacral sprain and strain,” “lumbar radiculopathy,” “aggravation of preexisting lumbar
disc disease” and “spasm of muscles.” (/d. at 3).
There is thus sufficient evidence to create an issue for trial as to whether Mr. O’Malley
suffered from a disability, as well as whether Mr. O'Malley sought accommodations for this
condition. Likewise, there is evidence of record to create an issue for trial as to whether Mr.
O'Malley suffered an adverse employment action — termination — which was causally related
to his asserted disability and request for accommodations. Therefore, summary judgment
must be denied.
Dowd argues that Mr. O’Malley “was advised on March 2016 that he would not be
permitted to work from home” and that the “14-month lapse between this notice and the
acceptance of his resignation in May 2017 conclusively dispels any suggestion of retaliation
and requires the conclusion that there is no genuine issue for trial on the retaliation claim.”
(Doc 55, at 18). However, there is evidence of record creating genuine disputes of fact as

43

to the sequence of events with respect to Mr. O’Malley’s request for accommodations and
his departure from employment at Dowd, on or about May 11, 2017 (see Doc. 25, at J 39).
On March 2, 2017, Plaintiff wrote to SuAnn Ritter via email stating: “If my back does
not start to feel better, | need to take a half day. To be honest with you with everything
going on | think | need to be bale [sic] to work from home or start looking for a job where |

can. | am in a lot of pain sitting in these chairs.” (Doc. 60-11, at 3). Previously, Mr. O’Malley
on March 31, 2017, had emailed Ms. Ritter asking if he could “get out a little early, it's one of
those days with the rain my back is killing me.” (/d. at 4). (See also id. at 5 (email from Mr.
O'Malley stating: “SuAnn, | am in a lot of pain today because of back. | do not think | can
make through the day the way my back feels, the chair is not helping at all. | will definitely
wait till 1130 so it’s a half day. Days like today upset me | cannot work from home, | know it
is not your choice but it still feels unfair how they pick and choose. Sorry for rant.”)).
In the May 1, 2017 email wherein Mr. O’Malley informed John Dowd that he was
looking for employment elsewhere because he “felt like | have been wronged again”, he
stated that “one of the main reason | did come to Sundance was | was promised flex time
and ability to work from home only when needed (once in a while), which | have done
multiply [sic] times in the past here at Sundance. .. .” (Doc. 60-15, at 3).
Further, Mr. O’Malley testified at his deposition that he was told by Marvin Metzger,
Dowd’s CEO in 2017, that he “missed too many days” and that he needed to be present at
work. (O’Malley Dep., at 89:9-10; 90:2-5). Mr. O’Malley also testified that he had one or

44

two conversations with SuAnn Ritter concerning his disability and his desire to work flex
time or to be able to work from home as follows:
Q: — And your testimony is you had one or two conversations with SuAnn
Ritter about this is 2017, is that your testimony?
A: — About leaving the company?
Q: Yes.
A: Definitely one. | brought up more than one time about how | need
accommodations for my disability and | can’t be in the office all the time
though. That was multiple times conversations. So | think that’s where you're
getting all the multiple conversations from.
(Id. at 130:12-22).
Here, there is arguably sufficient temporal proximity between Mr. O’Malley’s
protected activity of seeking accommodations and complaining about what he believed to
be a refusal by Dowd to grant him those accommodations as well as a pattern of
antagonism between Dowd and Marvin Metzger and John Dowd to present disputes of fact
that preclude summary judgment.
In Williams v. Philadelphia Housing Authority Police Department, the Third Circuit
identified precisely what a plaintiff must do to establish a prima facie case of illegal
retaliation:
“(I]n order to establish a prima facie case of illegal retaliation under the anti-
discrimination statutes, a plaintiff must show: ‘(1) protected employee activity;
(2) adverse action by the employer either after or contemporaneous with the
employee's protected activity; and (3) a causal connection between the
employee's protected activity and the employer's adverse action.” Fogleman

45

v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002) (quoting Krouse v.
Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)).
380 F.3d 751, 759 (3d Cir. 2004), superseded by statute on other grounds, ADA
Amendments Act of 2008, Pub. L. No. 110-325, § 6, 122 Stat. 3553, 3558 (2008), as
recognized in Robinson v. First State Cmty. Action Agency, 920 F.3d 182, 185 (3d Cir.
2019).
The Circuit in Williams affirmed the District Court’s determination that Williams’
termination, which occurred over two months after his request for an accommodation, “was
not suggestive of a causal connection between Williams's request for accommodation and
termination.” /d. at 759-760. In explaining its decision, the Court made clear that the use of
temporal proximity to support inferentially the existence of a causal link between protected
activity and retaliatory conduct must be “unusually suggestive.” Thus, it stated:
We have held in the ADA retaliation context that “temporal proximity between
the protected activity and the termination [can be itself] sufficient to establish
a causal link.” Shellenberger [v. Summit Bancorp, Inc., 318 F.3d 183, 183 (3d
Cir. 2003)](quoting Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.
1997)) (internal quotation marks omitted). However, “the timing of the alleged
retaliatory action must be unusually suggestive of retaliatory motive before a
causal link will be inferred.” Shellenberger, 318 F.3d at 189 n.9 (quoting
Krouse, 126 F.3d at 503) (internal quotation marks omitted). For example, two
days between the protected activity engaged in and the alleged retaliation
sufficed in Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989), to support an
inference of a causal connection between the two. Similarly, in Shellenberger,
comments made by a supervisor suggesting retaliation ten days before
termination, along with other evidence of retaliation, were sufficient to
establish a prima facie showing of causation. Shellenberger, 318 F.3d at 189.
Here, over two months elapsed between the time Williams requested a radio
room assignment and the time that he was terminated. In cases like this one,
46

“where ‘the temporal proximity is not so close as to be unduly suggestive,’ we
have recognized that ‘timing plus other evidence may be an appropriate
test....”” Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003)
(quoting Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d Cir. 2003)
(internal quotation marks omitted)).
Id. at 760.
The retaliation standard in Williams has been consistently followed in this Circuit.
For example, in LeBoon v. Lancaster Jewish Community Center Association, the Third
Circuit observed:
We consider “a broad array of evidence” in determining whether a sufficient
causal link exists to survive a motion for summary judgment. Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000). Where the
temporal proximity between the protected activity and the adverse action is
“unusually suggestive,” it is sufficient standing alone to create an inference of
causality and defeat summary judgment. See Clark County School Dist. v.
Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)
(temporal proximity alone, when “very close,” can in some instances establish
a prima facie case of retaliation); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d
Cir. 1989) (reversing summary judgment in favor of the defendant where
plaintiff had been discharged two days after his employer's receipt of his
EEOC claim). Where the temporal proximity is not “unusually suggestive,” we
ask whether “the proffered evidence, looked at as a whole, may suffice to
raise the inference.” Farrell, 206 F.3d at 280 (internal citation and quotation
marks omitted). Among the kinds of evidence that a plaintiff can proffer are
intervening antagonism or retaliatory animus, inconsistencies in the
employer's articulated reasons for terminating the employee, or any other
evidence in the record sufficient to support the inference of retaliatory animus.
Id. at 279-81. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.”).
Although there is no bright line rule as to what constitutes unduly suggestive
temporal proximity, a gap of three months between the protected activity and
the adverse action, without more, cannot create an inference of causation and
47

defeat summary judgment. See Clark County School Dist. 532 U.S. at 273,
121 S.Ct. 1508 (citing favorably Richmond v. ONEOK, Inc., 120 F.3d 205,
209 (10th Cir.1997), which rejected such an inference where the events were
three months apart); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007)
(five-month time period between employee's complaint and first adverse
action was, without additional evidence, insufficient to raise an inference of
causation).
503 F.3d 217, 232-233 (3d Cir. 2007).
Whether Mr. O’Malley was the subject of unlawful retaliation under the ADA cannot
be resolved on summary judgment. The respective positions of the parties require the
resolution of factual disputes which in turn require that credibility assessments be made of
the testimony to be presented at trial.’

’ See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013):
Under Rule 56, . . . a “court shall grant summary judgment if the movant shows that there
is No genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The party asserting that there is a genuine dispute of
material fact must support that assertion by “citing to particular parts of ... the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations..., admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). In evaluating the motion, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations
or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150,
120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
716 F.3d at 772. See also, Doebblers’ Penn. Hybrids, Inc. v. Doebbler, 442 F.3d 812, 820 (3d Cir.
2006)(stating that credibility determinations “are inappropriate to the legal conclusions necessary to a ruling
on summary judgment. . . .A District Court should not weigh the evidence and determine the truth itself, but
should instead determine whether there is a genuine issue for trial.”); J. F. Feeser, Inc. v. Serv-A-Portion,
Inc., 909 F.2d 1254, 1531 (3d Cir. 1990) ("We are keenly aware that credibility determinations are not the
function of the Judge; instead the non-movant’s evidence must be credited at this stage.”).
48

For these reasons, summary judgment on Counts Seven and Eight will be denied.®
Lastly, Dowd Marketing seeks summary judgment on Mr. O’Malley’s claims in
Counts Nine and Ten of his Third Amended Complaint that he was discharged because of

an alleged disability in violation of the ADA and PHRA.
In Eshelman v. Agere Systems, Inc., the Third Circuit noted that it had “recognized
that ‘analysis of an ADA claim applies equally toa PHRA claim.” 554 F.3d 426, 433 n.3 (3d
Cir. 2009) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)).
Thus, the Court limited its discussion of the plaintiffs ADA claims “because our analysis of
th[ose] claim[s] is, under the circumstances of this case, coterminous with the PHRA
claims]. /d. (quoting Williams, 380 F.3d at 762 n.6).
To prevail here under the ADA, Mr. O’Malley must establish that he is a “qualified
individual with a disability.” 42 U.S.C. § 12112(a).
The ADA defines “qualified individual with a disability” as “an individual with a
disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). The ADA defines “disability” with regard to
an individual as either: (i) “a physical or mental impairment that substantially
limits one or more of the major life activities of such [an] individual”; (ii) “a
record of such an impairment”; or (iii) “being regarded as having such an
impairment.” 42 U.S.C. § 12102(2).
Eshelman, 554 F.3d. at 433.

8 The Court has not made mention of Mr. O'Malley's testimony regarding the loss of his office and
his placement in what he terms a “closet”. This is so because O'Malley, in his deposition testimony,
testified that the reason for his separation was that he was told he could not work from home, adding “the
office | was upset about, of course, anybody would be upset about, but that was not the reason.” (See
O'Malley Dep., at 143:11-144:14)
49

While the ADA does not define “major life activity”, the definition of that term is set
forth in EEOC regulations codified at 29 C.F.R. § 1630.2:
(h) Physical or mental impairment means—
(1) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine; or
(2) Any mental or psychological disorder, such as an intellectual
disability (formerly termed “mental retardation’), organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.
(i) Major life activities—
(1) In general. Major life activities include, but are not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working; and
(ii) The operation of a major bodily function, including functions of the
immune system, special sense organs and skin; normal cell growth;
and digestive, genitourinary, bowel, bladder, neurological, brain,
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions. The operation of a
major bodily function includes the operation of an individual organ
within a body system.
(2) In determining other examples of major life activities, the term
“major” shall not be interpreted strictly to create a demanding standard
for disability. ADAAA section 2(b)(4) (Findings and Purposes).
Whether an activity is a “major life activity” is not determined by
reference to whether it is of “central importance to daily life.”
50

(j) Substantially limits—
(1) Rules of construction. The following rules of construction apply
when determining whether an impairment substantially limits an
individual in a major life activity:
(i) The term “substantially limits” shall be construed broadly in favor
of expansive coverage, to the maximum extent permitted by the
terms of the ADA. “Substantially limits” is not meant to be a
demanding standard.
(ii) An impairment is a disability within the meaning of this section if it
substantially limits the ability of an individual to perform a maior life
activity as compared to most people in the general population. An
impairment need not prevent, or significantly or severely restrict, the
individual from performing a major life activity in order to be
considered substantially limiting. Nonetheless, not every impairment
will constitute a disability within the meaning of this section.
(iii) The primary object of attention in cases brought under the ADA
should be whether covered entities have complied with their
obligations and whether discrimination has occurred, not whether an
individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment
“substantially limits” a major life activity should not demand extensive
analysis.
(iv) The determination of whether an impairment substantially limits a
major life activity requires an individualized assessment. However, in
making this assessment, the term “substantially limits” shall be
interpreted and applied to require a degree of functional limitation
that is lower than the standard for “substantially limits” applied prior
to the ADAAA.
29 C.F.R. § 1630.2(h)-(j).
Here, Plaintiff O’Malley has presented evidence of record of a major impairment of a
life activity, specifically walking, sitting, and working.
51

To establish a prima facie case of discrimination under the ADA, a plaintiff must
show:
“(1) he is a disabled person within the meaning of the ADA; (2) he is
otherwise qualified to perform the essential functions of the job, with or
without reasonable accommodations by the employer; and (3) he has
suffered an otherwise adverse employment decision as a result of
discrimination.”
Taylor, 184 F.3d at 306 (quoting Gaul v. Lucent Techs, 134 F.3d 576, 580 (3d Cir. 1998)):
see also, Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010).
Dowd argues that even if Mr. O’Malley were able to demonstrate that he is disabled
within the meaning of the ADA, and Dowd disputes this fact, O’Malley “never made Dowd
Marketing aware of any alleged disabling impairment or resulting substantial limitations.”
(Doc. 55, at 21). This assertion presents a dispute of fact which precludes summary
judgment. In addition to Mr. O’Malley’s deposition testimony, Mr. O’Malley’s supervisor and
chief technology officer sent an email to Jackie Quigley on March 2, 2017 entitled
“Ergonomic Chair for Employee”, stating:
Gene is under a doctor's care for back pain. He said that the chair he
currently has is causing him pain. Can you help him get a more ergonomic
chair? Or does he need a doctor’s note? Or some other process/approval?
(Doc. 60-11, at 6). What followed was the April 3, 2012 note from Advanced Pain
Management Specialists, P.C. (Doc. 60-13). In addition, a document completed by Mr.
O'Malley for Dowd in June 2013 shows he answered yes to a question which asked him
whether he had every been medically diagnosed or treated for a back disorder. (Doc. 60-

52

10). Thus, a material dispute of fact exists as to whether Dowd Marketing was aware of any
alleged disabling impairment on the part of Mr. O’Malley as a consequence of his back
injury or condition.
Next, Dowd argues that Mr. O’Malley “did not suffer any adverse employment
action.” (Doc. 55, at 21). Here again, as previously discussed herein, there are disputes of
fact as to whether Mr. O’Malley resigned, as asserted by Dowd, or was terminated, as
Plaintiff asserts.
Finally, Dowd argues that even if Plaintiff were to present proof sufficient to establish
the elements of a retaliation claim, Dowd has a legitimate non-discriminatory reason for
what it contends that it did, i.e. “accept[ ] his resignation. (/d. at 22). Once again, the
‘legitimate non-discriminatory reason” offered by Dowd Marketing, specifically that Mr.
O'Malley did not attend a meeting as he was required to do on the Concord project,
presents a dispute of fact for trial in that Mr. O'Malley contends that the proffered reason for
what he terms his termination was a pretext for discrimination against him based on his
disability.
As a result, issues of fact preclude the entry of summary judgment on Plaintiff's
claims in Counts Nine and Ten of the Third Amended Complaint.
Lastly, Plaintiff O’Malley supplemented his response to Dowd’s Statement of
Undisputed Material Facts with 12 “additional facts” in separately numbered paragraphs.
(See Doc. 60, at 20-21). Dowd contends that this is not authorized under M.D.Pa. Local

53

Rule 56.1, arguing that Rule 56.1 “provides that an opposition to a summary judgment
motion must include a statement ‘responding to the numbered paragraphs’ in the movant’s
statement ‘as to which it is contended that there exists a genuine issue to be tried.” (Doc.
64, at 15). Thus, Dowd argues that Plaintiffs additional submission is not permitted by
Local Rule 56.1 and should be disregarded. The Court agrees. Mr. O’Malley’s additional
statement of facts is outside the scope of Dowd’s statement of material facts and this Court

may properly decide to give the former no evidentiary value. See Rau, 2019 WL 6358755
at * 2 (Third Circuit finding no abuse of discretion in District Court’s refusal to assign
evidentiary value to Plaintiffs counterstatement, which went outside the scope of
Defendant's statement of facts, in light of the “latitude given to district courts interpreting
their own local rules, Local Rule 56.1’s purpose to increase efficiency, and its plain
language.”).
V. CONCLUSION
Accordingly, for the reasons set forth herein, summary judgment will be entered in
favor of Defendant Dowd on Counts Two, Four, Five and Six. Defendant Dowd’s motion for

summary judgment will be denied as to Counts Seven, Eight, Nine and Ten of Plaintiffs
Third Amended Complaint.
A separate Order follows. \ □□

SN ld Ll □□
Robert. Mariani
United States District Judge
54

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667480. Public record. Not legal advice.